19-3748-cv

In re Patriot National, Inc. Securities Litigation

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 2nd day of October, two thousand twenty.

PRESENT: JON O. NEWMAN

RICHARD C. WESLEY

JOSEPH F. BIANCO,

Circuit Judges.

IN RE PATRIOT NATIONAL, INC. SECURITIES 

LITIGATION* 19-3748-cv

ARIC MCINTIRE, HENRY WASIK 

Plaintiffs-Appellants,

ODS CAPITAL LLC, BARRY A. SMITH, SUNIL SHAH,

ADAM KAYCE,

Plaintiffs-Appellees,

v.

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the 

caption above.
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CHRISTOPHER PESCH, CHARLES H. WALSH,

MICHAEL J. COREY, QUENTIN P. SMITH,

Defendants-Appellees.

For Plaintiffs-Appellants: NICHOLAS I. PORRITT (Eduard 

Korsinsky, on the brief), Levi & 

Korsinsky, LLP, New York, NY.

For Plaintiffs-Appellees: JACOB M. POLAKOFF, Berger Montague 

PC, Philadelphia, PA (Lawrence 

Deutsch, Berger Montague PC, 

Philadelphia, PA; Joseph D. Cohen,

Jennifer M. Leinbach, Glancy Prongay 

& Murray LLP, Los Angeles, CA, on the 

brief).

For Defendants-Appellees: JOHN P. STIGI III, Sheppard, Mullin, 

Richter & Hampton LLP, Los Angeles, 

CA (Christopher J. Bosch, Sheppard, 

Mullin, Richter & Hampton LLP, New 

York, NY, on the brief).

On appeal from the United States District Court for the Southern District of New York 

(Ramos, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court entered on November 6, 2019 is AFFIRMED.

Plaintiffs-appellants Aric McIntire and Henry Wasik (collectively, “appellants”), appeal 

from the district court’s November 6, 2019 order approving settlement of a securities fraud class 

action against defendants-appellees Patriot National, Inc. and certain of its officers and directors. 

On appeal, appellants challenge the settlement on three grounds: (1) the settlement was unfair 

because it did not provide adequate compensation for investors like appellants who possessed other 

claims; (2) lead plaintiffs-appellees were not adequate class representatives because their interests 
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were not aligned with class members who had additional claims; and (3) the class settlement notice 

was deficient. 

We review each of these challenges under an abuse of discretion standard. See TBK 

Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 463 (2d Cir. 1982) (reviewing the reasonableness 

of a settlement); In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 224 (2d Cir. 

2006) (reviewing class certification); Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 

438 (2d Cir. 2007) (reviewing class notices). We assume the parties’ familiarity with the 

underlying facts and the procedural history of the case, which we reference only as necessary to 

explain our decision to affirm.

I. Fairness of the Settlement

Lead plaintiffs- and defendants-appellees (collectively, “appellees”) agreed to a $6.5 

million settlement in this case, which is 6.1 percent of what appellees agree is the settlement class’s 

maximum potentially recoverable damages, $106 million. Appellants argue that the settlement 

was unfair because it accounts only for damages under Section 10(b) of the Securities Exchange 

Act of 1934, 15 U.S.C. § 78j (“Exchange Act”), and does not account for additional claims that 

could be asserted on behalf of some class members under Section 11 of the Securities Act of 1933, 

15 U.S.C. § 77k (“Securities Act”) and under Delaware state law. Appellants further contend that 

had these claims been included in the calculation of the overall settlement amount, the potential 

recovery would have been $195 million. 

A class action settlement must be “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). 

In assessing the adequacy of a class action settlement, district courts in this Circuit consider the 

Grinnell factors:
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(1) the complexity, expense and likely duration of the litigation; (2) the reaction of 

the class to the settlement; (3) the stage of the proceedings and the amount of 

discovery completed; (4) the risks of establishing liability; (5) the risks of 

establishing damages; (6) the risks of maintaining the class action through the trial; 

(7) the ability of the defendants to withstand a greater judgment; (8) the range of 

reasonableness of the settlement fund in light of the best possible recovery; [and] 

(9) the range of reasonableness of the settlement fund to a possible recovery in light 

of all the attendant risks of litigation.

City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (citations omitted), abrogated 

on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). We have 

emphasized that, on appeal, the district court’s determination is accorded “[g]reat weight . . . 

because he is exposed to the litigants, and their strategies, positions and proofs. . . . Simply stated, 

he is on the firing line and can evaluate the action accordingly.” Id. at 454; accord Joel A. v. 

Giuliani, 218 F.3d 132, 139 (2d Cir. 2000). 

Here, the district court did not abuse its discretion in approving the settlement. In 

addressing the fairness of the settlement, the district court specifically considered the Grinnell

factors and noted the many reasons that the settlement was fair and adequate, including: the 

defendant company had filed for bankruptcy and had “possibly as low as $16 million” in insurancepolicy funds available to reimburse the class; the insurance was “wasting,” and creating a risk that 

further litigation would drain the amount available to shareholders; the final settlement amount 

was within the reasonable percentage of recoveries in terms of similar cases; the settlement was 

the product of arm’s length, court-ordered mediation; there was only one objection and two optouts out of the 13,530 notices that were sent out to class members; the largest shareholders agreed 

to and “actively endorsed the settlement”; and the district court was “satisfied that the litigation 
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risks were taken into account by plaintiffs’ counsel.” Joint App’x at 3146, 3154–55. These reasons

were more than sufficient for the district court to find the recovery to be fair and reasonable. 

Although appellants argue that shareholders who had Securities Act and Delaware state 

law claims were not fairly compensated, we find that argument unpersuasive for several reasons. 

First, the parties presented an allocation plan to the district court that based recovery on individual 

market losses, rather than on any specific claim. More specifically, appellees’ expert noted in his 

report that every shareholder who bought shares during the initial public offering (and who, thus, 

had a potential claim under the Securities Act) was, under the plan of allocation, entitled to

compensation based upon their actual loss. The district court was within its discretion to approve 

the settlement based upon that evidence. See Hayes v. Harmony Gold Mining Co., 509 F. App’x 

21, 23 (2d Cir. 2013) (summary order) (approving district court’s finding that the settlement was 

fair, in part because the district court had relied on “a detailed damages analysis by class counsel’s 

retained expert”). Second, although appellants argued baldly that a Delaware state law claim that 

some class members could assert is separately worth $50 million, they offer no grounds to conclude 

that this particular claim—which was filed by one of the appellants—had a likelihood of success; 

nor do they provide any reason to doubt the district court’s finding that “the litigation risks were 

taken into account by plaintiffs’ counsel.” Joint App’x at 3154. Third, not only is it uncontroverted 

that the overall settlement amount was within the average range for these types of cases, but 

appellants concede that even if we accept their hypothetical version of success (including the value 

of the Securities Act and Delaware state law claims, which they claim would raise the possible 

recovery to $195 million) the settlement here would still be in the average range for similar cases. 

Finally, the difference between the maximum potentially recoverable damages utilized by the 

district court of $106 million and appellants’ purported $195 million maximum recovery amount 
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does not materially impact the reasonableness analysis when this bankrupt company had only a 

maximum of $30 million remaining in its insurance policy funds (which, as the district court noted, 

might have been as low as $16 million). 

In short, having reviewed the record and the relevant case law, we find no abuse of 

discretion in the district court’s decision to approve the class settlement. 

II. Adequacy of the Class Representation

In a related challenge, appellants assert that plaintiffs-appellees were not properly 

appointed to serve as lead plaintiffs because, although all class members had claims under the 

Exchange Act, only some of the class members also held Securities Act and Delaware state law 

claims. Thus, appellants contend that lead plaintiffs were not adequate class representatives, and 

sub-classing was required by Rule 23 of the Federal Rules of Civil Procedure. 

The party seeking to certify a class bears the burden of satisfying Rule 23(a)’s four 

threshold requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of 

representation. See Fed. R. Civ. P. 23(a). In considering Rule 23(a)(4)’s adequacy requirement, 

the primary factors are whether the class representatives have any “interests antagonistic to the 

interests of other class members” and whether the representatives “have an interest in vigorously 

pursuing the claims of the class.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006); 

see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“The adequacy inquiry under Rule 

23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to 

represent.”). In addressing these questions, the “terms of the settlement” and “the structure of the 

negotiations” are relevant factors, but the focus must steadfastly remain on whether “the interests 

of those within the single class are . . . aligned.” Amchem, 521 U.S. at 626–27; see also Wal-Mart 

Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106–07 (2d Cir. 2005). However, even if a conflict 
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is revealed, it does not “necessarily defeat class certification—the conflict must be 

‘fundamental.’” Denney, 443 F.3d at 268 (quoting In re Visa Check/MasterMoney Antitrust 

Litig., 280 F.3d 124, 145 (2d Cir. 2001)).

Here, there was no fundamental conflict among the class members such that sub-classing 

was required. All of the lead plaintiffs and every shareholder had an Exchange Act claim—

therefore, lead plaintiffs were sufficiently motivated to recover as much as possible for each class 

member. Moreover, appellants provide no sufficient reason to find that lead plaintiffs were 

antagonistic to any of the class members. In fact, two of the three lead plaintiffs qualified to assert 

both Exchange Act and Delaware state law claims. Thus, these lead plaintiffs’ interests were 

aligned with the interests of the Delaware claimholders, and they “ha[d] an interest in vigorously 

pursuing” such claims. Id.; Wal-Mart Stores, 396 F.3d at 113 (“[D]ue process does not require 

that all class claims be pursued. Instead, where different claims within a class involve the identical 

factual predicate, adequate representation of a particular claim is determined by the alignment of 

interests of class members, not proof of vigorous pursuit of that claim.”). Furthermore, although 

lead plaintiffs did not have Securities Act claims, those claims were not antagonistic to the 

Exchange Act claims. See, e.g., In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 37 (2d 

Cir. 2009) (affirming district court’s holding that no sub-classing was necessary because the 

Securities Act and Exchange Act claims were not antagonistic to each other); In re Flag Telecom 

Holdings, Ltd. Sec. Litig., 245 F.R.D. 147, 160 & n.14 (S.D.N.Y. 2007) (“[T]he [Exchange Act 

and Securities Act] claims are not antagonistic to each other because proof of one does not negate 

an essential element of the other.”), vacated on other grounds, 574 F.3d 29 (2d Cir. 2009). 
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In sum, appellants have provided no basis to conclude that lead plaintiffs had interests that 

were antagonistic to the interests of any class members. Accordingly, the district court did not 

abuse its discretion by finding that lead plaintiffs were adequate class representatives. 

III. Class Settlement Notice 

Finally, appellants assert that the class notice was insufficient. In particular, appellants 

argue that the class notice was deficient because it failed to include an estimate of the potential 

recovery at trial. Under the Private Securities Litigation Reform Act (“PSLRA”), the class notice 

must include a statement of “the average amount of damages per share that would be recoverable 

if the plaintiff prevailed” or, if the parties do not agree on this average amount, “a statement from 

each settling party concerning the issue or issues on which the parties disagree.” 15 U.S.C. § 78u4(a)(7)(B).

Here, as authorized by the statute, the notice states that the parties “do not agree on the 

average amount of damages per share that would be recoverable if Plaintiffs were to prevail in the 

Action” and that, “[a]mong other things, Defendants do not agree that they violated the federal 

securities laws or that any damages were suffered by any members of the Settlement Class as a 

result of their alleged conduct.” Joint App’x at 2172. The notice thus complies with the PSLRA.

1

 

See, e.g., In re Bank of Am. Corp. Sec., Deriv., & Emp. Ret. Income Sec. Act (ERISA) Litig., 772 

F.3d 125, 133–34 (2d Cir. 2014) (“When parties state that they do not agree as to the average 

amount of damages per share, [the PSLRA] requires only that the parties provide a statement 

1 In the notice here, the description of the issues on which the parties disagree is sparse 

compared to similar statements in prior settlements we have approved. Because appellants did not 

argue that the PSLRA requires parties to provide in the notice all of the issues relevant to damages

on which the parties disagree, we have no occasion to decide this question and it remains open.
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‘concerning the issue or issues on which the parties disagree.’” (quoting 15 U.S.C. § 78u4(a)(7)(B)(ii))). As appellants concede, “[t]his Court has previously upheld as adequate class 

notices containing similar language to the notice approved by the District Court in this case.” 

Appellants’ Br. at 53; see also In re Bank of Am. Corp., 772 F.3d at 134. 

In short, appellants have failed to point to any manner in which the notice violated the 

PSLRA, Rule 23, or due process. Accordingly, we conclude that the district court did not abuse 

its discretion in approving the notice. 

* * *

We have considered appellants’ remaining arguments and conclude they are without merit. 

Accordingly, the judgment of the district court is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court